SZVGA v Minister for Immigration
[2018] FCCA 967
•12 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVGA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 967 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal not to grant Applicants protection visas – whether Tribunal erred in considering the chance of future harm on the balance of probabilities – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 438 |
| Cases cited: AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 |
| First Applicant: | SZVGA |
| Second Applicant: | SZVGB |
| Third Applicant: | SZVGC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1479 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 28 March 2018 and 12 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2018 |
REPRESENTATION
| First Applicant: | In person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1479 of 2016
| SZVGA |
First Applicant
| SZVGB |
Second Applicant
| SZVGC |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 18 May 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicants protection visas.
The First Applicant, a citizen of China (referred to for convenience as the Applicant), arrived in Australia in 2008 on a student visa accompanied by his partner, the Second Applicant. Their child, who was born in Sydney in 2011, is the Third Applicant. They applied for protection visas in December 2013.
The Applicant claimed to have become a committed Catholic in Australia and to fear persecution on the basis of his religious beliefs as a Roman Catholic if he returned to China, in particular because he intended to practise his faith in the underground Catholic Church in his home area in Fujian province.
The Applicant claimed to have attended a Catholic church in Sydney and to have been baptised. He provided evidence by way of a baptism certificate, photographs of church attendance and a letter from a priest attesting to his attendance at church in support of his protection visa application.
The Applicant also initially claimed that he feared harm on the basis that he would be liable to pay a social compensation fee for the child who had been born out of wedlock and that the Second Applicant would be subjected to forced sterilisation.
The application was refused. The Applicants sought review by the Tribunal.
On 8 September 2014 the Tribunal (differently constituted) affirmed the decision under review. That decision was quashed by this court in December 2015.
The matter was remitted for reconsideration. It is that reconsideration that is the subject of these proceedings.
The Applicant appeared before the reconstituted Tribunal at a hearing in March 2016. The Tribunal recorded that it took telephone evidence from a priest and a parishioner at the church the Applicant claimed he attended in Australia.
In its reasons for decision the Tribunal summarised the claims and evidence of the Applicant, as made initially, in his interview with the delegate, at the first Tribunal hearing and at the hearing before it.
The Applicant claimed that he participated in worship and was also involved with the church in other ways in Australia. He handed out leaflets and provided information to people, talked to people at his place of work about his religious beliefs and, more generally, engaged in what he referred to as “spread[ing] the Gospel to everyone on earth.” The Tribunal recorded that the Applicant claimed he had been talking to people and giving them his personal testimony about his own experiences. The Tribunal gave the Applicant and his adviser the opportunity to provide further evidence in support of his claims about the situation in China.
The Tribunal recorded the basis on which the matter had been remitted for reconsideration (in essence, a failure by the first Tribunal to engage with a post-hearing submission in relation to the Applicant’s delay in applying for a protection visa). It observed that it had not considered the Applicant’s delay in applying for a protection visa to be significant in determining the review.
The Tribunal referred to the evidence, claims and submissions on behalf of the Applicant. It outlined the discussion at the first Tribunal hearing of information submitted for the Applicant and issues raised with him and his representative, in particular in relation to the consequences for Roman Catholics attending the underground churches in Fujian province and engaging in activities such as the activities the Applicant claimed he had engaged in in Australia and would continue to engage in in China. The Tribunal also referred to country information in relation to the treatment of Roman Catholics and the underground churches in Fujian province.
The Tribunal elaborated on its discussion of the Applicant’s claims in relation to Catholicism at the hearing of 23 March 2016. The Tribunal recorded that it had indicated for the Applicant’s benefit that it accepted that he and his family were very much involved in the Catholic Church here and that on the basis of the evidence he had produced to the first Tribunal, the Tribunal accepted that the Applicant was a genuine and committed Catholic.
The Tribunal gave the Applicant the opportunity to explain if he was involved in any other groups or activities of the church which he had not mentioned to the first Tribunal. It recorded that he thought he had already mentioned to the first Tribunal the groups he was attending and also that he and his church friends would sometimes hand out Chinese leaflets with information about the church at train stations. He was recorded as claiming that when he took his family out to the park or elsewhere he would take information or materials with him and if he happened to see any Chinese people there, he would give them information, talk to them and tell them his testimony if they were willing to listen to him.
He also elaborated on his claim to talk to people at his place of work about the Catholic Church, his beliefs, past experiences and other matters. He claimed he invited people to attend the church and thought he had brought four or five people to church in this way.
The Tribunal recorded that it had indicated to the Applicant that it accepted that if he went back to China he would want to worship in the unregistered or underground churches. It referred to the Applicant’s claims about problems he and his family would have if they went back to China, in particular his claims that he might be persecuted, harassed, put in a labour camp or jailed, where there were no human rights. It also considered his wider claims about the treatment of underground churchgoers.
The Tribunal recorded that it had put to the Applicant that country information indicated that the authorities in Fujian province were more tolerant than in other Chinese provinces and that there were a lot of unregistered churches which operated quite openly. It informed the Applicant it would be considering what he might be involved in if he went back to China based on the activities he had been involved in in Australia. It put to him that it was difficult to accept on the information available that there was a real chance or real risk he would be imprisoned or sent to a labour camp because of such activities in Fujian province.
It also raised with the Applicant that it was difficult to believe that if things were happening to the unregistered Catholic Church, they would not be reported, given that the Roman Catholic Church had an obvious interest in publicising such incidents. The Tribunal indicated that it was not aware of such reports in recent times. The Tribunal gave the Applicant the opportunity to produce further evidence in relation to anything that had happened to members of the unregistered Catholic Church in Fujian.
The Applicant confirmed that he, his wife and child were not pursuing any claim in relation to family planning laws in China.
The Tribunal also referred to post-hearing submissions for the Applicant in which it was claimed that he feared persecution for reason of his religion, his membership of a particular social group (as a member of the underground Catholic Church) and his imputed political opinion on the basis that carrying out his ordinary religious practices would be seen as opposition to the Communist regime in China because of his refusal to be involved in services in the government-sanctioned Catholic churches. It was claimed that he feared harm if he was found conducting routine religious practices, especially proselytizing to people in public.
The Tribunal considered, in some detail, letters of support from people in Australia who had witnessed the Applicant’s activities and also from Catholics (including a priest) in the underground Catholic Church in Fujian province, as well as country information to which it referred
The Tribunal accepted that the Applicant and his family were involved in the Catholic Church in Australia and that he was a genuine and committed Catholic. It accepted that he and the Second Applicant attended Sunday mass, Bible study, a hymn-singing group and that he took part in other church activities, talked about his beliefs to co-workers, handed out leaflets and talked to people he met in parks, train stations and shopping centres about his beliefs and that he had invited people to attend his church. It also accepted that if the Applicant and his family went back to China, they would want to worship in the unregistered or underground churches.
Insofar as the Applicant claimed that he and his family might be harassed, put in a labour camp or jail, the Tribunal found that there were significant differences in religious freedom between the provinces in China. While the Applicant had referred to situations in other provinces, he and his spouse came from Fujian province which the Tribunal found extended a high degree of tolerance to Christian activities in general and to the unregistered churches in particular. The Tribunal accepted that some of the sources cited in information before it may be read as taking a different view. It referred to specific items of country information in that respect. However the Tribunal found that the weight of the evidence indicated that, for over a decade or more, adherents of unregistered churches in Fujian, and the unregistered Catholic churches in particular, had been free to worship and to practise their religion in accordance with their consciences. While the Tribunal accepted that there had been isolated incidents in which adherents of the unofficial Catholic Church in Fujian had been arrested, it found that the most recent incident referred to in independent sources was the arrest of a named priest in 2010. The Tribunal was of the view that the fact that no similar instances of harassment or arrest had been reported in the subsequent period lent support to the view that there was a high degree of tolerance in Fujian province.
The Tribunal considered the letter from a Catholic in Fuqing City which claimed that a particular priest had been in custody for a month and had been questioned for attending a meeting, that a church had been shut down and that the place where the “consecrated virgins” lived was being monitored. It also described the claims of the letter writer that their churches were regarded as illegal churches, that they could be arrested at any time, that they would be arrested if catechism classes were discovered and in great trouble if they preached the gospels in public. The Tribunal also had regard to claims by a person who attended an underground Catholic church in Fuqing City that they had to carry out activities secretly, that the government had responded more harshly to underground religious activities in 2016 and that it had made the construction of their church “not even fully completed”. It summarised a letter from another person who belonged to a Catholic church in Fujian province who made similar claims and referred to harassment and restrictions on preaching and claimed that it was illegal to preach the gospel in public and that some friends doing so had been caught and locked up in the past few years.
The Tribunal found, however, that there was no confirmation in independent sources of the specific claims made in these letters. It was of the view that if, for example, a named priest had been in custody for one month as claimed, this could be expected to be reported by independent sources monitoring religious freedom in China, considering the interest of the Roman Catholic Church in such incidents and the existence of other named organisations which closely monitored arrests of Catholic clergy in China.
While the Tribunal accepted that there had been isolated instances in which adherents of the unofficial Catholic Church in Fujian province had been arrested, it did not accept that (as claimed in these letters) adherents had to carry on their activities secretly because they may be arrested or that people who had attended Gospel preaching had been caught, locked up in detention or transferred to a reformatory and brainwashed.
The Tribunal accepted that in China the Applicant would be involved in the same activities in which he had been involved in Australia. It did not accept that there was a real chance he would be involved in spreading the Gospel to people in the army, teachers or the police, but accepted that he would continue to talk to people about his beliefs and give them his personal testimony about his experiences. The Tribunal acknowledged that the Applicant’s representative had referred to the fact that proselytizing in public was officially not permitted. It pointed out that this was also true of meeting in unregistered places of worship, but found that the weight of the evidence indicated that for over a decade or more adherents of unregistered churches in Fujian, and unregistered Catholic churches in particular, had been free to worship and to practise their religion in accordance with their consciences.
The Tribunal found that there was no confirmation in independent sources of the written claims from people in China that in 2016 the local government, under instruction from the central government, had responded more harshly to underground religious activities. Insofar as it was claimed that a wave of anti-Christian public campaigning was imminent, the Tribunal found that there was no evidence cited in support of this claim. It found that the reference to demolition of churches in supporting letters was to what had occurred in a different province in 2014. Insofar as there was reference in the letters to a campaign to suppress all forms of dissent, targeting Christians, the Tribunal found that the evidence in this respect related to events in another province in 2014, that there were wide variations between provinces and that there was no evidence that these problems extended to Fujian province.
The Tribunal accepted on the basis of independent evidence, including that produced by the Applicant’s representative, that the authorities had from time to time demolished unregistered churches in Fujian, as in other provinces, but was of the view that these isolated instances did not detract from the overall picture of religious tolerance in Fujian.
The Tribunal addressed a claim about a gang leader who died in prison in China after being severely beaten when a Bible was discovered in his personal possessions. The Tribunal found that whatever may have been the rules in that particular prison, independent evidence indicated that possession of a Bible was not in itself unlawful in China, albeit that the authorities limited printing and distribution of Bibles and confiscated Bibles in raids on house churches. Given what the Tribunal considered to be the high degree of religious tolerance in Fujian province, it did not accept there was a real chance the Applicant would be persecuted because he would be involved in Bible study in China in the same way as in Australia.
The Tribunal also found nothing in the independent evidence to support the claim that there was a real chance that as converts to Catholicism the Applicant or his partner would encounter community prejudice in the manner claimed. It did not accept on the evidence before it that there was a real chance they would be viewed in China as having forsaken their culture, renounced their national identity and brought shame to their forefathers, or as having become a tool of, or collaborator with, “foreign evils”, because they had converted to Catholicism.
The Tribunal concluded that on the basis of these findings it did not accept that if the Applicant and his family returned to Fujian province now or in the reasonably foreseeable future there was a real chance they would be persecuted for reasons of their religion, suggested membership of a particular social group or claimed anti-government imputed political opinion because of their refusal to be involved in services in the government-sanctioned Catholic churches. In light of the independent evidence, the Tribunal considered the Applicants would be free to worship and practise their religion as members of the unregistered Catholic Church in accordance with their consciences.
Having regard to the fact that the family planning laws claims have been abandoned, the Tribunal concluded that it did not accept that the Applicant, his spouse or their son had a well-founded fear of persecution for a Convention reason in China now or in the reasonably foreseeable future.
Similarly, having regard to its findings of fact, the Tribunal found that the Applicants did not meet the complementary protection criterion. In that context it reiterated its conclusion, based on independent evidence, that they would be free to worship and practise their religion as members of the unregistered Catholic Church in accordance with their consciences and the observation that the family planning laws claim had been abandoned.
The Tribunal affirmed the decision under review.
The Applicant sought review by application filed on 10 June 2016. There is one ground in the application. In the affidavit the Applicant filed in support of his application he repeated the ground in his application. The Applicant did not file any amended application or written submissions. He was given the opportunity at the hearing to elaborate on the claims in his application. He did not do so, but suggested that it was all there in the documents he had submitted. I also asked the Applicant if he had any other concerns about the Tribunal decision or procedures. He indicated that he did not.
The ground in the application commenced by referring to Kalala v Minister for Immigration and Multicultural Affairs (which it appears is a reference to the decision of the Full Court of the Federal Court reported at [2001] FCA 1594; (2001) 114 FCR 212). In this ground it was suggested that in Kalala, the majority of the Full Court had “clarified that the test requires the decision maker to consider the chance of the review applicant being persecuted on Convention Grounds on a standard less than the balance of probabilities, stating that what is required is a possibility rather than a probability of risk to the review applicant”.
It was asserted that the Tribunal failed to take this into account. Reference was made to the fact that the Tribunal recorded that it had told the Applicant at the hearing that it accepted that he and his family were very much involved in the Catholic Church here and that “he was a genuine and committed Catholic.” The ground of review also referred to the Tribunal finding (at [58]) to this effect and also to the Tribunal’s acceptance that the Applicant and his spouse attended Mass, Bible study and other activities, that he had engaged in talking about his beliefs and inviting people to attend church and that if he and his family went back to China they would want to worship in the unregistered or underground churches.
After citing this paragraph the ground continued (errors in original):
With that having said, the Tribunal agreed that there have been isolated instances in which adherents of the unofficial Catholic Church in Fujian Province have been arrest [59]; the Tribunal also referred to independent country information at [29] to [35], attesting the incidents where underground Catholic church priests and laymen were persecuted previously in Fujian, China.
Furthermore; the Presiding Member acknowledged in January, 2016, an unregistered Church in Fujian was demolished, and an inmate was beaten to death in FuJian by prison correctional officers for hiding a Bible [Paragraph 66].
As the facts I set out above, it is a possibility that my family would be at risk of persecution because of our religious practice. However, based on the tribunal’s assessment; it, apparently, emphasised its findings on the probability; the error as such made by the Tribunal is jurisdictional.
As indicated, the Applicant had nothing to say in support of this ground. It was addressed by the First Respondent in written and oral submissions.
As the First Respondent pointed out, the Tribunal accepted the Applicant’s claims about his Catholicism, the extent of his involvement in the Church and activities and his intention to worship in the unregistered, underground churches in Fujian province if he returned to China. However, taking into account all the evidence, including recent and supportive country information, the Tribunal was not satisfied that there was a real chance the Applicant (or his family) would be persecuted for the reasons claimed should he return to China in the reasonably foreseeable future.
The Tribunal findings in this respect were supported by evidence before it to which it referred and were made without any apparent doubt. Such findings were reasonably open to the Tribunal for the reasons which it gave. Moreover, the weight the Tribunal gave to country information (insofar as that lies behind this ground) is a matter for it as part of its fact finding function. The accuracy of such information is a matter for the Tribunal. There is nothing in the material before the court or in this ground to indicate that the Tribunal’s approach to country information was in any way indicative of jurisdictional error.
The Tribunal correctly and consistently applied the language of “real chance” in its findings and conclusion in relation to the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (the Act). In addition, in the summary of relevant law annexed to the decision, it set out relevant authorities in relation to the concept of well-founded fear and referred to established principles in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 per Mason CJ at 389, Dawson J at 398, Toohey J at 407 and McHugh J at 429, including observing that a fear will be well-founded “even though the possibility of the persecution occurring is well below 50 per cent” and referring to Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 572 .
Insofar as the ground referred to Kalala (in which the Full Court of the Federal Court referred to Chan and Guo), this does not assist the Applicants. While North and Madgwick JJ in Kalala at [6] did refer to “the lack of necessity for a balance of probabilities assessment of the validity of the fear” there is no evidence that the Tribunal applied a balance of probabilities test. Moreover, in contrast to Kalala, this is not a case in which the Tribunal rejected an applicant’s claims about past events or could not satisfactorily establish what occurred in the past, but nonetheless had to go on to consider the possibility of persecution occurring in the future such that the question of the correct approach to the future in such circumstances had to be considered. In this case there were no claims about relevant past events in China. The Tribunal accepted the Applicant’s claims about becoming involved in the Catholic Church in Australia and also his claims he would continue such involvement in China in the future.
There is no basis for a contention that there was any error of the nature considered in Kalala in this case. In particular, there is nothing to indicate that the Tribunal failed to appreciate that it was “to be “satisfied” of something that may be constituted by a mere possibility, provided always that it is a real and substantial one” (see Kalala at [12]). The Tribunal did not approach the issue of whether there was a real chance of persecution in the future if the Applicant and his family returned to China on a basis that disclosed an impermissible balance of probabilities test.
The ground in the application is not made out.
The First Respondent raised the fact that a certificate was issued by the Department under s.438 of the Act. In the particular circumstances of this case, having regard to the manner and time at which this issue was raised, I adjourned the hearing so that the First Respondent could file and serve written submissions in relation to the s.438 certificate (which had not been addressed in the pre-hearing submission) including, in particular, reference to relevant recent decisions of the Full Court of the Federal Court and to give the Applicant the opportunity to consider this issue and to be in a position to respond to it.
The First Respondent filed supplementary submissions which the Applicant confirmed at the adjourned hearing he had received and had read with a translation. He had nothing to say in relation to the s.438 certificate issue. I have, however, considered this issue in light of the Minister’s submissions, the material before me and decisions of the Federal Court.
Relevantly, the certificate, which is an annexure to an affidavit of Mr Gao affirmed on 28 March 2017, is dated 31 December 2015. It certifies that s.438(1)(a) of the Act applies to information in certain specified folios on the basis that disclosure of this information would be contrary to the public interest “because the aforementioned folios contain information relating to an internal working document and business affairs”.
The Minister conceded (indeed submitted) that this s.438 certificate was invalid because the reason given on the certificate was, as was the case in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1, not a reason which could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document or the information should not be disclosed.
However it was submitted, and for the reasons that follow I agree, that the fact that there was an invalid certificate was not in this case such as to establish jurisdictional error or, in the alternative, that even if there was technically a jurisdictional error, in this case relief should be refused.
The documents and the certificate are in evidence before me. Hence (contrary to the position in MZAFZ) I am in a position to consider whether there is any basis on which it could be said that the Tribunal acted on the certificate or that the documents were or had been treated as in some way material to the decision on review (as considered in Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194).
As canvassed in CQZ15 (and also see Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198), I was of the view that in this case it is appropriate to have regard to the documents covered by the certificate for the purposes of determining these issues.
The solicitor for the Minister took the court through the documents in submissions. They are no more than internal working documents. It is convenient to deal with the documents in chronological order.
The first documents (chronologically) are two tax invoice receipts relating to the Applicants’ protection visa application fee. The issue before the Tribunal in this case was whether the Applicants had a well-founded fear of persecution or met the complementary protection criterion on the basis of their claims that they would be harmed in China for reason of their religion and the associated claims of membership of a particular social group and imputed political opinion. It is clear that these receipts are not relevant to the Applicants’ claims to fear harm in China and could not have any bearing on the Tribunal’s consideration of those claims.
The next documents (chronologically) consist of two pages summarising the protection visa application and containing brief identification test details in relation to the application. The identities of the adult applicants were accepted on the basis of their personal identifiers on 30 December 2013. There is no way in which such documents could have any relevance to the Tribunal decision. This is not a case in which any Applicant’s identity was in issue.
In addition, the documents include an internal Departmental checklist relating to the validity of the Applicants’ protection visa application (a “Validity Check”) and an accompanying record in relation to the grant of a bridging visa. The first document records the view that the protection visa application was valid, the second that a bridging visa assessment had been made. It contains some very limited personal details of the Applicants. There is nothing to indicate any relevance to the matter before the Tribunal.
The same may be said in relation to what is described as a “Decision Check Sheet” which appears to be an internal Departmental document recording, in very brief terms (by circling printed alternative reasons), the basis for the delegate’s decision of 3 April 2014. The delegate’s decision itself was before the Tribunal. Clearly the Applicant was aware of that decision. There is nothing in this checksheet beyond an indication that the basis for the conclusion was that in relation to the Refugees Convention criterion the fear was not well-founded and that in relation to complementary protection there was no real risk. None of this is of any relevance from the perspective of the Tribunal review.
There are also a number of Departmental documents recording the fact that there were previous judicial review proceedings in relation to the decision of the Tribunal as originally constituted and that the court had ordered that the matter be remitted to the Tribunal for reconsideration. However these documents, an internal Departmental email, a file note described as a “Matters Details Summary” and a brief notification from the Department to the Tribunal of the fact of a “Reconsideration Ordered”, do no more than record these matters and indicate that in these circumstances compliance action may not be appropriate. These documents do not in any way address the reasons for reconsideration and in that sense are of no relevance to the matter before the Tribunal.
I also note that this is not a case in which there is any issue as to whether the Tribunal failed to make clear on the face of its reasons how it had discharged its obligation to reconsider the matter according to law. The Tribunal expressly addressed this issue.
In these circumstances, having considered all of these documents, I am satisfied that none of the documents were relevant to the Applicants’ claims, that they could not have had any bearing on the Tribunal’s consideration and that there is nothing to suggest in any way that the Tribunal acted on, or had regard to, any of these documents by treating them as material in some way to the decision on review in the sense considered in CQZ15. Having regard to the nature and content of the documents the subject of the certificate, the absence of any reference to such documents or to the certificate in the Tribunal reasons supports an inference that the Tribunal, which otherwise gave detailed and comprehensive reasons, did not consider the documents to be material to the review.
As Barker J considered in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566, no substantive issue arises from non-disclosure in circumstances where the Tribunal plainly had no regard to documents which could have been of no, or at least only passing contextual relevance to the application.
In these circumstances it is relevant to have regard to the principles summarised in the Minister’s written submissions as clarified in oral submissions. While issues may arise where a Tribunal has acted on a certificate and while in some circumstances there may be a failure to afford procedural fairness because a Tribunal has failed to disclose to an applicant the existence of a certificate purportedly issued under s.438(1)(a) of the Act, documents the subject of the certificate or information in such documents (as considered in MZAFZ), the mere fact that a certificate has been issued under s.438 of the Act and is invalid will not always mean that the decision of the Tribunal is affected by jurisdictional error.
Rather it is necessary to consider the effect of the presence of the invalid certificate, including whether the documents said to be covered by the certificate could be considered material to the decision on review (see CQZ15 at [74]-[76]). In that respect, as indicated, it is necessary to have regard to the particular circumstances of each case. The mere fact that a certificate is before the Tribunal and its existence is not disclosed to an applicant (as was the case in this instance), does not necessarily establish that the decision of the Tribunal was affected by a denial of procedural fairness.
In BEG15 the Full Court expressed the view (by reference to its findings in BJN16), that it is not always a jurisdictional error for the Tribunal to act upon an invalid s.438 certificate and that is not invariably a denial of procedural fairness (see in particular the discussion at [30] summarising those principles in BEG15).
Whether an applicant was denied procedural fairness will depend on the circumstances and consequences for the applicant of non-disclosure. In this case the content of the documents covered by the certificate are incapable of having any bearing on the decision of the Tribunal. As pointed out in CQZ15, in such circumstances one would likely conclude that the non-disclosure of the certificate and notification could not have deprived the applicant before the Tribunal of an opportunity to advance his or her case, whether or not the certificate or the notification was valid.
This is such a case. There is nothing in the circumstances of this case to indicate that there has been a denial of procedural fairness or that the non-disclosure deprived any of the Applicants of any opportunity to advance their case.
Furthermore, even if there is technically a jurisdictional error by reason of non-disclosure of a certificate issued under s.438 of the Act or the documents in issue, it may be appropriate for the Court to withhold relief in the exercise of its discretion in circumstances where the documents do not contain material that can be said in any way to deprive the applicant of the possibility of a successful outcome and where non-disclosure does not give rise to any practical injustice (see BEG15).
Having regard to these principles and the facts set out above, I am satisfied that no practical unfairness is apparent in the circumstances of this case, notwithstanding the failure in disclosure. There was no denial of procedural fairness constituting jurisdictional error. Even if, technically, there was a jurisdictional error because of the failure to disclose the certificate or the documents which it covered, I cannot see how knowledge of the existence of the certificate or the content of the documents could make any difference to the outcome of the review, whether or not one takes a backward or forward looking view in the sense considered in BEG15 v Minister for Immigration and Border Protection [2016] FCCA 2778; (2016) 315 FLR 196.
The documents do not contain any material prejudicial to the Applicants’ interests. The Tribunal has not acted on that material. In those circumstances if, contrary to my view, there was a jurisdictional error, I would exercise my discretion to refuse relief in circumstances where neither the invalidity of the certificate or the failure by the Tribunal to notify the Applicants of the certificate or to provide them with a copy of any or all the documents referred to in the certificate gave rise to any practical injustice to any of the Applicants.
In these circumstances the application should be dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 23 April 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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